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Via GAO | August 2018:
There are three categories of nonimmigrant visas for prospective students and exchange visitors. U.S. Immigration and Customs Enforcement administers the Student and Exchange Visitor Program, under which schools are certified for enrollment of foreign students (i.e., F and M visa holders) pursuing academic, vocational, or other nonacademic studies. The Department of State’s Exchange Visitor Program manages the issuance of J visas to exchange visitors with programs for foreign nationals such as teachers, certain scholars, au pairs, camp counselors, and professorial programs. Foreign nationals on F, M, or J visas in the United States are monitored through U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Information System.
Top 5 nationalities (FY 2017): Chinese 19%, Indian 10%, Korean 4%, Vietnamese 4%, Brazilian, 3%
The percentage of NIVs refused—known as the refusal rate—increased from fiscal years 2012 through 2016, and was about the same in fiscal year 2017 as the previous year. As shown in figure 8, the NIV refusal rate rose from about 14 percent in fiscal year 2012 to about 22 percent in fiscal year 2016, and remained about the same in fiscal year 2017; averaging about 18 percent over the time period. As a result, the total number of NIVs issued peaked in fiscal year 2015 at about 10.89 million, before falling in fiscal years 2016 and 2017 to 10.38 million and 9.68 million, respectively.
Other questions to ask:
“‘Why don’t you have a Pulitzer Prize?’ the consular officer asked. A Nobel would suffice, too.” It’s getting more difficult for foreign journalists to work in the US, my latest for @CJR https://t.co/wJ5E0rqQV5
— Amanda Darrach (@akdarrach) September 12, 2018
Posted: 4:44 am ET
On September 26, the State Department updated its FAM guidance on INELIGIBILITY BASED ON ILLEGAL ENTRY, MISREPRESENTATION AND OTHER IMMIGRATION VIOLATIONS – INA 212(A)(6)
INA 212(a)(6)(C)(i) provides an alien who seeks to procure, or has sought to procure, or has procured a visa, other documentation, or entry into the United States or other benefit provided under the INA by fraud or willfully misrepresenting a material fact at any time shall be ineligible for a visa.
9 FAM 302.9-4(B)(2) notes that “most cases of inadmissibility under this section will involve “material misrepresentations” rather than “fraud” since actual proof of an alien’s intent to deceive may be hard to come by. As a result, the Notes in this section will deal principally with the interpretation of “material misrepresentation.”
The guidance tells consular adjudicators that “To conclude there was a misrepresentation, you must have direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion but less than a preponderance of the evidence.”
On September 16, 2017 the State Department sent 17 STATE 95090 on the Change to INA 212(a)(6)(C)(i) and Introduction of 90 Day Rule
1. SUMMARY: This cable advises posts on the application of INA section 212(a)(6)(C)(i) as it pertains to revised guidance at 9 FAM 302.9-4(B)(3)(g-h) regarding the 90 day rule, formerly known as the “30/60 day rule.” Interagency working groups agreed to a change in policy and expanded the 30/60 day timeframe to 90 days for aliens who enter the United States and engage in activity inconsistent with their nonimmigrant status before procuring a change or adjustment of status. END SUMMARY.
The 90 day rule
2. The following revised guidance replaces the 30/60 day rule and applies to all adjudications that occur after September 1. The guidance should not be applied retroactively. As detailed in the revisions to 9 FAM 302.9-4(B)(3)(g-h), aliens who violate or engage in conduct inconsistent with his or her nonimmigrant status within 90 days of entry into the United States by:
1) engaging in unauthorized employment;
2) enrolling in a course of unauthorized academic study;
3) marrying a U.S. citizen or lawful permanent resident and taking up residence in the United States while in a nonimmigrant visa classification that prohibits immigrant intent; or
4) undertaking any other activity for which a change of status or adjustment of status would be required prior to obtaining such change or adjustment, may be presumed to have made a material misrepresentation.
You must give the alien the opportunity to present evidence to rebut the presumption that he or she made a willful misrepresentation on prior visa applications or in their applications for admission to the United States before you can find the applicant ineligible under 212(a)(6)(C)(i). If the applicant is unable to overcome the presumption that he or she engaged in a willful misrepresentation, post must request an Advisory Opinion (AO) from the Visa Office of Advisory Opinions (CA/VO/L/A) per 9 FAM 302.9-4(B)(3)(h)(2)(b).
3. If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status after 90 days of entry into the United States, there generally is no presumption of willful misrepresentation. However, if facts in the case give you a reason to believe that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A.
Posted: 12:17 am ET
President Trump issued E.O. 13780 on March 6 (Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States). It revoked the January 27 order, and reissued the ban for the same six countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen, with Iraq excepted (see Trump Revokes Travel Ban EO, Reissues New Executive Order For Six Muslim Countries Minus Iraq).
As we’ve pointed out previously here, there’s something in EO 13780 that did not get as much attention as the travel ban. Section 2 (a) and (b) of the E.O. requires the review of immigration-related information sharing by foreign governments.
Sec. 2. Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat. The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the worldwide review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State, the Attorney General, and the Director of National Intelligence.
The report required under Section 2(b) was reportedly submitted in mid-July to the President. The State Department subsequently sent a guidance cable to all posts worldwide to help foreign governments understand the requirements and how they can start meeting them. We understand that posts were told to request a response from their host government counterparts to enable them to respond to the State Department by July 21.
On September 24, President Trump announced new security measures that establish minimum requirements for international cooperation to support U.S. visa and immigration vetting and new visa restrictions for eight countries. The announcement cites Section 2 of Executive Order 13780 — “if foreign countries do not meet the United States Government’s traveler vetting and information sharing requirements, their nationals may not be allowed to enter the United States or may face other travel restrictions, with certain exceptions.” Below are the country-specific restrictions per Fact Sheet: Proclamation on Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats:
Country-Specific Travel Restrictions:
Chad – Although it is an important partner, especially in the fight against terrorists, the government in Chad does not adequately share public-safety and terrorism-related information, and several terrorist groups are active within Chad or in the surrounding region, including elements of Boko Haram, ISIS-West Africa, and al-Qa’ida in the Islamic Maghreb. Accordingly, the entry into the United States of nationals of Chad, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.
Iran – The government in Iran regularly fails to cooperate with the United States Government in identifying security risks; is the source of significant terrorist threats; is state sponsor of terrorism; and fails to receive its nationals subject to final orders of removal from the United States. Accordingly, the entry into the United States of nationals of Iran as immigrants and as nonimmigrants is suspended, except that entry by nationals of Iran under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals will be subject to enhanced screening and vetting requirements.
Libya – Although it is an important partner, especially in the area of counterterrorism, the government in Libya faces significant challenges in sharing several types of information, including public-safety and terrorism-related information; has significant inadequacies in its identity-management protocols; has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States; and has a substantial terrorist presence within its territory. Accordingly, the entry into the United States of nationals of Libya, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.
North Korea – The government in North Korea does not cooperate with the United States Government in any respect and fails to satisfy all information-sharing requirements. Accordingly, the entry into the United States of nationals of North Korea as immigrants and nonimmigrants is suspended.
Somalia – Although it satisfies minimum U.S. information-sharing requirements, the government in Somalia still has significant identity-management deficiencies; is recognized as a terrorist safe haven; remains a destination for individuals attempting to join terrorist groups that threaten the national security of the United States; and struggles to govern its territory and to limit terrorists’ freedom of movement, access to resources, and capacity to operate. Accordingly, the entry into the United States of nationals of Somalia as immigrants is suspended, and nonimmigrants traveling to the United States will be subject to enhanced screening and vetting requirements.
Syria – The government in Syria regularly fails to cooperate with the U.S. Government in identifying security risks; is the source of significant terrorist threats; has been designated as a state sponsor of terrorism; has significant inadequacies in identity-management protocols; and fails to share public-safety and terrorism information. Accordingly, the entry into the United States of nationals of Syria as immigrants and nonimmigrants is suspended.
Venezuela – The government in Venezuela is uncooperative in verifying whether its citizens pose national security or public-safety threats; fails to share public-safety and terrorism-related information adequately; and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States. Accordingly, the entry into the United States of certain Venezuelan government officials and their immediate family members as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas is suspended.
Yemen – Although it is an important partner, especially in the fight against terrorism, the government in Yemen faces significant identity-management challenges, which are amplified by the notable terrorist presence within its territory; fails to satisfy critical identity-management requirements; and does not share public-safety and terrorism-related information adequately. Accordingly, the entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended.
IRAQ: The Secretary of Homeland Security also assesses Iraq as inadequate according to the baseline criteria, but has determined that entry restrictions and limitations under a Presidential proclamation are not warranted because of the close cooperative relationship between the United States and the democratically elected government of Iraq, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combating the Islamic State of Iraq and Syria (ISIS).
The Secretary recommends, however, that nationals of Iraq who seek to enter the United States be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States.
The FAQ notes that these restrictions and limitations took effect at 3:30 p.m. eastern daylight time on September 24, 2017, for foreign nationals “who were subject to the suspension of entry under section 2 of E.O. 13780, and who lack a credible claim of a bonda fide relationship with a person or entity of the United States.” The restrictions and limitations take effect at 12:01 a.m. eastern daylight time on October 18, 2017, for all other foreign nationals subject to the suspension of entry under section 2 of E.O. 13780, and for nationals of Chad, North Korea, and Venezuela.
Posted: 2:06 am ET
On August 21, U.S. Mission Russia announced that it is suspending nonimmigrant visa operations across Russia effective Wednesday, August 23.
As a result of the Russian government’s personnel cap imposed on the U.S. Mission, all nonimmigrant visa (NIV) operations across Russia will be suspended beginning August 23, 2017. Visa operations will resume on a greatly reduced scale. Beginning September 1, nonimmigrant visa interviews will be conducted only at the U.S. Embassy in Moscow. NIV interviews at the U.S. Consulates in St. Petersburg, Yekaterinburg, and Vladivostok are suspended until further notice. As of 0900 Moscow time Monday, August 21, the U.S. Mission will begin canceling current nonimmigrant visa appointments countrywide. The NIV applicants who have their interviews canceled should call the number below to reschedule their interview at the U.S. Embassy in Moscow for a later date. NIV applicants originally scheduled for an interview at the U.S. consulates in St. Petersburg, Yekaterinburg, and Vladivostok should call the number below if they wish to reschedule their interviews at the U.S. Embassy in Moscow.
The staffing changes will also affect the scheduling of some immigrant visa applicants. Affected applicants will be contacted if there is a change as to the time and date of their interview.
The U.S. Embassy in Moscow and three consulates will continue to provide emergency and routine services to American citizens, although hours may change. (For American Citizen Services hours, please check the U.S. Mission to Russia website at https://ru.usembassy.gov/u-s-citizen-services/acs-hours.)
US Mission Russia released a Fact Sheet also noting that the cancellation of visa interviews prior to September 1 is due to “planning for departures and staff reductions” that has already begun “in order to meet the Russian government’s September 1 deadline for the reduction of personnel.” It further notes that operation at reduced capacity will continue as long as its mission staffing levels are reduced.
As of August 21, the appointment visa wait times for U.S. Mission Russia for visitor visas are as follows: Moscow (85 calendar days), St. Pete (44 days), Vladivostok (2 days) and Yekaterinburg (59 days). When visa interviews resume at the US Embassy in Moscow on September 1, all visa interviews at the three constituents posts will remain suspended.
Foreign Minister Sergey Lavrov (via TASS) said that “the US authors of these decisions have plotted another attempt at stirring up resentment among Russian citizens regarding decisions by the Russian authorities.”
Posted: 3:01 am ET
Via the Department Press Briefing:
(No longer daily, now rebranded, and better than ever)
QUESTION: Well, does that mean parole – the fact that parole had to be used would suggest – and let’s just put it in a – not in this specific context, because you won’t talk about these visas specifically – would suggest that the reason for ineligibility stands, that – in other words, that if parole is the only way a person can get into this country, that the decision made by the consular officers at post stands.
MS NAUERT: The consular officers – as I understand it, under law and the way that they handle visa adjudications, once a visa is denied, that that is not able to be reversed, that that decision is not able to be reversed.
QUESTION: Right. In other words – so the decision that was made at post that these girls or anyone was ineligible for a visa stands. So —
MS NAUERT: I can’t comment – I cannot —
QUESTION: — then one wonders why the immigration law is such that it determines or that someone looking at it determines that a bunch of teenage Afghan girls are somehow a threat to the United States or are somehow a – somehow – or otherwise ineligible for an American visa.
MS NAUERT: I think commenting on that, as much as I would like to be able to share with you more about this – you know I can’t. You know I can’t because it’s a visa confidentiality, but I can tell you that it is not reversible once a consular affairs officer denies someone’s visa. DHS took it up; they have the ability to do so. Anything beyond that, DHS would have to answer that.
QUESTION: Right. But I mean it remains the State Department’s position that someone who can only get into the country on this parole – on parole is ineligible for a visa, correct?
MS NAUERT: I wouldn’t conflate one with the other. That is DHS. That’s a different department. That’s a different kind of program. That’s not a program that we administer here. Okay?
QUESTION: But State Department denied the visas twice before the parole was granted.
MS NAUERT: I can’t comment on that. Again, that would come under visa confidentiality. DHS made its decision, and so we are now glad that the girls are coming to the United States and wish them well.
QUESTION: But would that initial decision be reviewed, then, and whatever —
MS NAUERT: I know that our people at very senior levels in Afghanistan were involved in this, and I’ll just leave it at that. Okay?
QUESTION: So if parole – if visa – if visa information is completely confidential and you can’t discuss it, why is parole information available? And then why didn’t you give parole to the —
MS NAUERT: That’s a – you have to talk to DHS about that. Again, that’s a DHS program.
NOW THIS — tales of visa confidentiality:
In fairness to the State Department, the agency did not release any statement about its issuance of a visa to the current central player of the Russian controversy. The Department of Homeland Security did that on its own in a statement to BuzzFeed News last week when DHS cited the issuance of a B1/B2 nonimmigrant visa by the U.S. Department of State in June 2016.
INA 291 places the burden of proof upon the applicant to establish eligibility to receive a visa. However, the applicant is entitled to have full consideration given to any evidence presented to overcome a presumption or finding of ineligibility. It is the policy of the U.S. Government to give the applicant every reasonable opportunity to establish eligibility to receive a visa. This policy is the basis for the review of refusals at consular offices and by the Department. It is in keeping with the spirit of American justice and fairness. With regard to cases involving classified information, the cooperation accorded the applicant must, of course, be consistent with security considerations, within the reasonable, non-arbitrary, exercise of discretion in the subjective judgments required under INA 214(b) and 221(g).
Individuals who are outside of the United States may be able to request parole into the United States based on humanitarian or significant public benefit reasons.
Posted: 2:21 am ET
Nonimmigrant visas are used for travel to the United States on a temporary basis. Click here for the categories of nonimmigrant visas. Note that visas are used to make application to enter the United States. The validity of the visa is not a permit to stay. Having a visa does not guarantee entry to the United States, it does indicate a consular officer at a U.S. Embassy or Consulate abroad has determined you are eligible to seek entry for that specific purpose. DHS/CBP inspectors are responsible for admission of travelers to the United States, for a specified status and period of time.